September 19, 2008

Gostin: A Theory and Definition of Public Health Law

The revised and expanded second edition of Larry Gostin's book, Public Health Law: Power, Duty, Restraint, has just been released by the University of California Press.

The first chapter of this book,
"A Theory and Definition of Public Health Law", has been posted to SSRN and BePress.

Abstract:

The
literature, both academic and judicial, on the intersection of law and
health is pervasive. The subject of law and health is widely taught,
practiced, and analyzed. The fields that characterize these branches of
study are called health law, health care law, law and medicine,
forensic medicine, and public health law. Do these names imply
different disciplines, each with a coherent theory, structure, and
method that sets it apart? Notably absent from the extant literature is
a theory of the discipline of public health law, an exploration of its
doctrinal boundaries, and an assessment of its analytical methodology.

Public health law can be defined, its boundaries circumscribed, and
its analytical methods detailed in ways that distinguish it as a
discrete discipline—just as the disciplines of medicine and public
health can be demarcated. With this book I hope to provide a fuller
understanding of the varied roles of law in advancing the public’s
health. The core idea I propose is that law can be an essential tool
for creating conditions to enable people to lead healthier and safer
lives.

In this opening chapter, I offer a theory and definition of public
health law, an examination of its core values, an assessment of state
statutes in establishing the legal foundations of public health
agencies, a categorization of the various models through which law acts
as a tool to advance the public's health, and, finally, a description
of the current debate over the legitimate scope of public health. These
are the questions I will pursue: What is public health law and what are
its doctrinal boundaries? Why should population health be a salient
public value? What are the legal foundations of governmental public
health? How can law be effective in reducing illness and premature
death? And what are the political conflicts faced by public health in
the early twenty-first century?

My definition of public health law follows, and the remainder of
this chapter offers a justification as well as an expansion of the
ideas presented:

Public health law is the study of the legal powers and duties of the
state, in collaboration with its partners (e.g., health care, business,
the community, the media, and academe), to assure the conditions for
people to be healthy (to identify, prevent, and ameliorate risks to
health in the population) and the limitations on the power of the state
to constrain the autonomy, privacy, liberty, proprietary, or other
legally protected interests of individuals for the common good. The
prime objective of public health law is to pursue the highest possible
level of physical and mental health in the population, consistent with
the values of social justice.

Several themes emerge from this definition: (1) government power and
duty, (2) coercion and limits on state power, (3) government’s partners
in the "public health system," (4) the population focus, (5)
communities and civic participation, (6) the prevention orientation,
and (7) social justice.